Sex appeal

Labour & European Law ReviewWeekly Issue 34406 November 2013

The Equality Act states that employers cannot impose a provision, criterion or practice (PCP) which discriminates against a worker on the basis of their sex, unless they can justify it. In Little v Richmond Pharmacology Ltd, the Employment Appeal Tribunal (EAT) held that a successful appeal could also “cure” a complaint of indirect sex discrimination in certain - very specific - circumstances.

Basic facts

Richmond Pharmacology had a policy whereby clients were allocated one member of staff to contact during both the sales process and drugs trial. It also had a sophisticated spam filter system so that external access to its email system was limited to certain directors and staff.

Ms Little started work for the company in March 2006 as an evening receptionist. In January 2009 she was promoted to sales executive, just eight months before she went on maternity leave prior to the birth of her second child.

In early 2010, she asked if she could return from maternity leave on a flexible basis, working Monday to Wednesday 9am to 3pm with remote email access to clients and colleagues on the other two days. Her immediate line manager refused saying that sales staff could not work part time.

Ms Little appealed against that decision on 9 July, but resigned on 19 July before a hearing had been arranged. After the company asked her to reconsider, she attended a hearing on 22 July at which she was offered a three-month trial period of the new arrangements. She did not take up the offer, but instead confirmed on 26 July that her resignation of 19 July stood.

She claimed indirect sex discrimination, among other things.

Tribunal decision

The tribunal decided that the PCP which applied to Ms Little was that sales representatives must work full-time. Although the PCP was applied when she asked to work flexibly, it was disapplied on appeal. As a result, she did not suffer a disadvantage following the appeal decision and in any event, the PCP was justified.

It also found that Ms Little had not been personally disadvantaged because the company had agreed on appeal that she could work part-time on a trial basis as she had requested.

EAT decision

And the EAT agreed. It held that the tribunal was entitled to conclude that Ms Little had not been personally disadvantaged because the company agreed (on appeal) that she could work part-time on a trial basis. Ms Little accepted that in hindsight she could have taken up the offer of the trial period and, in the process, prove the company wrong about the efficacy of part-time working in the sales executive role.

As the internal appeal formed part and parcel of the employer's decision-making process, the manager's initial decision to reject Ms Little’s request was subject to her right of appeal. To that extent the decision was conditional. Ms Little then exercised that right and succeeded on appeal with the result that the PCP - full-time working - was not to be applied to her when she completed her maternity leave. She did not therefore suffer personal disadvantage nor any detriment short of dismissal. Her complaint of indirect sex discrimination had therefore been “cured” by the successful subsequent appeal.

On that basis, the EAT held that the tribunal's approach was not flawed in law and rejected the appeal.

Comment

This case is very fact specific and is therefore unlikely to have much general application. The only reason the court held that Ms Little’s complaint of sex discrimination could be "cured" by an appeal was because the appeal decision was made before the date she was due to return to work. However, wrongs such as not being allowed to go on a training session on a specific date or not being offered a promotion in a specific recruitment exercise would not be able to be resolved by an appeal.